(1988)1988 Αρη! 6 (A LOIZOU,Ρ , LORISANDSTYUANIDES,JJ ) HELI-AIR(EGYPT)J.S.C., Appellants-Plaintiffs, ν REINHARDDRESCHER AND ANOTHER, Respondents-Defendants, and DEUTSCHE BANKAG AND ANOTHER, Respondents-ln terveners (CivilAppeal No 7368) CivilProcedure — Intervention — Application by summons by aperson not aparty to the action for the dischargeof an mtenm orderissued in the action — The Courts of Justice Law, 14/60,Section 32 — A substantive, not a procedural provision — The Civil Procedure Rules 0 48, r8
(4)— Does not m general allow such an 5 intervention — *Anyperson» in 0.48, r.8
(4). Words and phrases «Anyperson» m 0 48, r 8
(4)of the CivilProcedure Rules The plaintiffs in the action claim the ownership of a helicopter in the possession of the defendants They sought and obtained an intenm order restraining the defendants from removing from the junsdiction or otherwise disposing thesaid helicopter 10 The respondents-interveners, who were not parties to the proceedings, applied by summons for the discharge of the intenm order.The application relied upon0 48,r8
(4)of theCivil Procedure 15 Rules andonsection32 of theCourtsofJustice Law, 1960 (14/60) The trial Judge determined the preliminary point whether the respondents-interveners were entitled toapply as aforesaid Thetnal Judge found thattheycould notintervene onthebasisof 0 48,r8
(4), but thatthey could do so on thebasisof section 32 234 ^ *CL.R. HeUAlrv.Diescher Hencethisappealbytheplaintiffs.Theintervenerscross-appealed onthegroundthattheinterventioncouldbebasedon0.48,r.8
(4)as well. 'Held,allowingtheappealanddismissingthecross-appeal: 5 10 15
(1)Section32isasectionofsubstantivelawanddoesnotprescribe anyprocedure.
(2)0.48,r.8
(4)doesnotingeneralgivetherighttoathirdperson to apply by summons for the discharge or variation of an interim orderissuedinproceedingsinwhichsuchapersonisnotaparty.The words«anyperson»doesnotcoverapersoninthecircumstancesof thiscasewherenoapplicationtobejoinedasapartywasmadeand where the very ownership andrightof possession of the subject property were in issue and were sought to be determined by the Courtinthecourseofdetermininganapplicationforthedischargeor variation ofaninterimorder. Appealallowed. Cross-appealdismissed. Costsagainstrespondents-interveners. Appeal. Appeal and cross-appeal againstthe ruling of the District Court 20 of Lamaca (Constantinides, S.D.J.) dated the 11th April, 1987 (Action No. 195/87) whereby the interveners were allowed to intervene on the basis of section 32 of the Courts of Justice Law, 1960 (Law 14/60) intheabove action. A.Triantafyllides, forthe appellants-plaintiffs. 25 Chr.Triantafyllides, for the respondents-defendants. K.Chrysostomides, for respondents-interveners No 1. P. Polyviou, for respondents-interveners No 2. Cur.adv. vult A.LOIZOU P.:TheJudgment of theCourt willbedelivered by 30' Stylianides, J. STYLIANIDES, J.: The facts relevant to this appeal appear sufficiently intherulingofthelearned trialJudgeand they maybe summed up as follows:The plaintiffs by the action claim the ownership of a helicopter 35 inthe possession of the defendants and an order for the returnof sametotheplaintiffs.Suchhelicopterwaswithinthejurisdictionof 235 Styttanlde*J. Hell-Abv.D r a c b e r
(1988)the District Court and had landed actually at Lamaca airport. On an ex-parte application by the plaintiffs the learned trial Judge issued an interim order restraining the defendants from removing from thejurisdictionorotherwisedisposingthesaidhelicopterand forbidding the departure orremoval ofsame from thejurisdiction without plaintiffs' consent in writing. The defendants in these proceedingsappeared and ultimatelyconsentedtoitsbeing made absolute. 5 In the meantime the companies Deutsche Bank AG and KG Heli-Air Hubschrauber GmbH&Co.,withoutbeingpartiestothe 10 proceedings inwhich the interlocutory order wasissued, applied totheCourtbysummonsand soughtthedischargeoramendment of the interlocutory order or alternatively the increase of the amount of the security which had been fixed by the learned trial Judge as a condition to the issue of the said order. They relied in 15 that respect on Order 48, rule8
(4)asproviding the legal basis for their application. Thesummons wascontested;thelearnedtrialJudgedecided to determine, preliminarily to the hearing of the application on the merits,the point whetherthe applicants had arighttotakepartin 20 the said interlocutory proceedings. The arguments advanced before the learned trial Judge are twofold:(a)That the applicants had a right to intervene on the basisof section 32 of the Courts of Justice Law, I960 {Law No. 14/60); 25 and (b)That they could do so on the basisof Order48, rule8
(4). The learned trial Judge found that the said rule does not give such aright,butproceeded toallowtheintervenertointervene on the basisofsection32 ofLaw 14/60whichwasneverarguedatall 30 before the Court. As against this ruling the plaintiffs filed this appeal and the grounds of theirappeal arethe following:The Court erred in relying on section 32 of Law 14/60, which was never relied upon and notargued atallbefore theCourt;and 35 that section 32 does not give to the interveners the right to intervene inthe way the applicants inthesaid application did, by 236 1 C.L.R. Hell-Air v.Drescber StyOaiddea J . simply filing an application tovaryor discharge the interim order withouteitherbeingpartiesorobtainingthe leaveofthe Court. The respondents-interveners cross-appealed and contended that the Honourable Court erred in holding that a third person, 5 affected byan interimorder issued ex-parte,may not applyforits discharge and/or variation on the basis ofOrder 48,rule 8
(4)and thatthisruleprovidesthe legalbasisfor their applications. Before proceeding any further we may saythat though section 32 does not appear to have been the subject of argument by 10 counsel, the applications are based upon it. The trial Court did invoke its provision and relied on it in reaching his decision, as same is referred to and relied upon in the application of the applicant. We have considered the able arguments advanced on both 15 sidesand gone through theauthorities referred toby them. We have come tothe conclusion thatsection 32 isa section of substantive law and does not prescribe any procedure. The procedure to be followed in invoking its provisions has to be soughtintheCivilProcedure Lawand therulesmade thereunder 20 or any other law or rules prescribing procedures covering such instances. Weagree withthelearnedtrialJudge thatparagraph 4ofrule 8 of Order 48 does not in general givethe righttoathird person to apply by summons for the discharge or variation of an interim 25 order issued inproceedings inwhich such a person isnota party. We do not accept the argument that a reference to «any person» covers a person in the circumstances of this case where no application tobejoined as aparty was made and where the very owneiship andrightof possession of thesubject propertywerein 30 issueandweresoughttobedeterminedbytheCourtinthe course of determining an application for the discharge or variation of an interim order. Havingsaidthisandhavingcome totheconclusionthatsection 32does not layany procedure regardingtherightofa person not 35 a party to proceedings to apply for a discharge or variation of a provisional order, we allow the appeal on thispreliminary point andwedismissthecross-appealforthesamereasonsgivenabove. 237 StyttanldesJ. HeU-Αίτv. Dretchei •
(1988)Consequently the applications ofthe respondents-interveners arehereby dismissed. Respondents-interveners topay thecostsoftheappellants. Appeal allowed. Crossappealdismissed. 238